Himachal Pradesh High Court
Sukhwinder Singh vs State Of Himachal Pradesh on 2 September, 2020
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) No.1425 of 2020
Decided on: 02.9.2020
.
__________________________________________________________________
Sukhwinder Singh ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner : Mr. T.S. Chauhan, Advocate.
For the Respondent : Mr. Sudhir Bhatnagar and Mr. Arvind
Sharma, Additional Advocates General,
for the State.
Mr. Pranay Pratap Singh, Advocate, for
the complainant.
__________________________________________________________________
Sandeep Sharma, Judge (oral):
Through Video Conferencing Bail petitioner namely Sukhwinder Singh, who is behind the bars since June, 2018, has approached this Court in the instant proceedings filed under Section 439 Cr.PC, for grant of regular bail in FIR No. 157 dated 29.5.2018 under Sections 302, 457, 380, 120B and 34 IPC registered at Police Station Haroli, District Una, Himachal Pradesh.
2. Sequel to order dated 21/28.8.2020, respondent State has filed Status report. I.O. has also come present with records. Perusal of status report/record reveals that on 29.5.2018, complainant, Smt. 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 03/09/2020 20:18:43 :::HCHP 2Surindera Devi got her statement recorded under Section154 CrPC alleging therein that on 28.5.2018, she alongwith her family had gone to .
Jawala Ji temple and on 29.5.2018, at 6 am, Debo Devi informed her that her brother-in-law, Achhar Singh was lying in a pool of blood in her court yard. Complainant disclosed to the police that at 12.30 pm, she reached her village but by that time, Debo Devi had taken Achhar Singh to her house. She also alleged that at the spot of alleged occurrence, two iron rods were lying and her trunk, wherein she had kept Rs.50,000/- was also stolen. In the aforesaid background, police registered FIR against unknown persons at the first instance and commenced investigation, but however, during investigation, police found involvement of the bail petitioner alongwith two other accused namely Kuldeep Singh alias Monu and Sharda Devi in the alleged offence. Accused Kuldeep Singh alias Monu and Sharda Devi stand already enlarged on bail, whereas, bail petitioner is behind the bars for more than two years. Record reveals that prior to filing of the petition at hand, bail petitioner alongwith other accused had approached court of learned Additional Sessions Judge (II) Una, Himachal Pradesh by way of filing bail application but same was dismissed on the ground that statements of material prosecution witnesses are yet to be recorded.
::: Downloaded on - 03/09/2020 20:18:43 :::HCHP 33. Learned Additional Advocate General, while fairly admitting factum with regard to filing of Challan in the competent Court of law, .
contends that though nothing remains to be recovered from the bail petitioner, but since only two prosecution witnesses remain to be examined, prayer having been made on behalf of the bail petitioner for grant of bail, deserves to be rejected outrightly. Learned Additional Advocate General while admitting that other two accused already stand enlarged on bail contends that since petitioner was the main person, who gave beatings to the Achhar Singh, he cannot be allowed to claim parity with other co-accused, to whom this Court has granted bail on altogether different grounds.
4. Having heard learned counsel for the parties and perused the material available on record, this Court finds that the bail petitioner is behind bars for more than two years coupled with the fact that statements of all the material prosecution witnesses stand already recorded. As per own statement of learned Additional Advocate General, only two prosecution witnesses, who are official witnesses, remain to be examined and as such, there is no force in the argument of learned Additional Advocate General that in the event of petitioner being enlarged on bail, he may temper with the evidence or dissuade the prosecution witnesses from not deposing against him. Besides above, this ::: Downloaded on - 03/09/2020 20:18:43 :::HCHP 4 Court finds that there is no eye witness in the case at hand, rather case of the proseuciton is totally based upon circumstantial evidence. Since .
statements of all the material prosecution witnesses already stands recorded, prayer for grant of bail having been made by the petitioner deserves consideration, especially when two other co-accused stand already enlarged on bail.
5. Though this Court is fully alive to the fact that offence alleged to have been committed by the petitioner is serious in nature but, guilt, if any, of the bail petitioner is yet to be determined in the totality of the evidence collected on record by the prosecution, and as such, it would not be fair to curtail his freedom for an indefinite period during trial.
Otherwise also, petitioner would suffer the consequences in case he is held guilty by the court on the basis of evidence led on record by the investigating agency. Petitioner is behind the bars for more than two years now and at this juncture, no recovery is to be effected from him.
Though, statements of two prosecution witnesses remain to be recorded but this court also cannot lose sight of the fact that trial courts have yet not started normal functioning on account of spread of Covid-19 pandemic and there is every likelihood of trial being delayed, as such, there is no justification to let the bail petitioner incarcerate in jail for an indefinite period during trial. Apprehension expressed by learned Deputy ::: Downloaded on - 03/09/2020 20:18:43 :::HCHP 5 Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to stringent .
conditions. Otherwise also Hon'ble Apex Court and this court have held in catena of judgments, that till the time, guilt of a person is proved, he is deemed to be innocent.
6. Needless to say, object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial.
Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
7. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:-
" The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite ::: Downloaded on - 03/09/2020 20:18:43 :::HCHP 6 contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the .
belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."
8. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon'ble Apex Court has held as under:-
" This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted."::: Downloaded on - 03/09/2020 20:18:43 :::HCHP 7
9. The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following .
principles to be kept in mind, while deciding petition for bail:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced;
and
(viii) danger, of course, of justice being thwarted by grant of bail.
10. Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, relevant para whereof has been reproduced herein below:-
"11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).
11. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal ::: Downloaded on - 03/09/2020 20:18:43 :::HCHP 8 jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court .
further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under:
"2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.::: Downloaded on - 03/09/2020 20:18:43 :::HCHP 9
4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence .
witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.
12. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 2,00,000/- with one surety in the like amount to the ::: Downloaded on - 03/09/2020 20:18:43 :::HCHP 10 satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:
.
(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) He shall not leave the territory of India without the prior permission of the Court.
(e) He shall handover passport to the Investigating Agency.
(f) He shall make himself available in the concerned police station i.e. Haroli twice a week at 11:00AM sharp.
13. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
14. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.
Copy dasti.
2nd September, 2020 (Sandeep Sharma),
manjit Judge
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